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1

ByMordyBrombergSC&RobertDurbridge,ExecutiveDirector,AustralianInstituteofEmploymentRights

Date:November,2006

ACHARTEROFEMPLOYMENTRIGHTS

A CHARTER OF EMPLOYMENT

RIGHTS

Mordy Bromberg SC & Robert Durbridge

1.

sionals engaged as

tives, unions,

academics and industrial relations practitioners. The AIER

commissions authoritative research in conjunction with academic

nd provides public advocacy in support of employment

rights. The AIER operates on the premise that core employment rights

sive but are in fact

complimentary.

2. r of

Australian employment rights and standards. Employment is at the

heart of the rights of citizens in democratic societies and work on a

een as an

ations

3. ult but to

a wide

range of forums. The process must be participative and must reach out

to wide sections of the community in its development of a set of rights

and standards for Australia. Whilst the process will require research

and academic rigour in both identifying rights and substantiating their

The Australian Institute of Employment Rights (“AIER”) is an

independent think tank formed by respected profes

labour rights advocates, employers and their representa

institutions a

and productivity and efficiency are not mutually exclu

One of the AIER’s priorities is the development of a Charte

Charter setting out contemporary rights and standards is s

important step towards a fair and appropriate industrial rel

system.

The AIER’s role in fostering a Charter is not to dictate a res

encourage discussion and a high level of public discourse in

- 2 -

inclusion in a Charter, the development of a Charter must involve a

rest groups

ommon

ms should be

es and seminars targeted at unions,

employers and other interest groups.

4. Australian

Labour Law Association’s Annual Conference in Brisbane on 22

September 2006. The forum is intended to launch a debate on the

sis of reform of

stralia. This paper is intended to provide a

discussion starter for the process of formulating a Charter of

Employment Rights for Australia.

WH

5. The AIER does not support the changes made to Australia’s industrial

ils to take

ployees. It is a

n of an

gislation

be

formed and protects against direct discrimination of union members but

the priority and preference given to individual bargaining at the expense

of employees in

tive

ing

an employer and an employee bargaining alone.

Accordingly freedom of contract has largely replaced freedom of

association. Whilst this is represented as enabling freedom of choice,

the reality is that the capacity to exercise choice is only available to the

strong and powerful.

high level of consultation. The process must bring both inte

and members of the general public with it. Where possible, c

ground and consensus should be found. Community foru

convened as well as conferenc

The AIER has convened a forum in association with the

rights which should underpin employment as the ba

industrial relations law in Au

Y A NEED FOR REFORM?

relations system by the federal government’s WorkChoices

amendments. The new federal industrial relations system fa

a balanced approach to the needs of employers and em

market driven approach in which the inferior bargaining positio

employee bargaining alone is not properly recognised. The le

pays lip service to freedom of association. It allows unions to

of collective bargaining undermines the collectivization

a union and defeats its primary purpose - of facilitating collec

bargaining as a means of redressing the inequality of bargain

strength between

- 3 -

6. At the same time, institutional supports, such as resort to compulsory

l Relations

e traditional

ing and

en removed or

nd

and in

need of reform. There is a widespread public perception of unfairness

and an historic opportunity exists for those sentiments to be harnessed

into the development of a reformed set of employment rights and

7. a multifaceted

een as

the only tool, but is it an appropriate tool? Alternatives exist. For

instance, rather than identifying and promoting a set of rights advocates

estoration

strial Relations Commission is an obvious

example. Alternatively, we could promote an industrial relations model,

a set of laws or policies, without identifying the underlying rights upon

which the model is based.

8. Whilst a rights based approach should not be regarded as exclusive of

other mechanisms for reform, we think that a rights based approach

in the

he concept

ert something

nd something universal. Once established and widely

acknowledged, rights tend to endure. They become a recognised part

of the fabric of society and often attain bi-partisan status and are free

from attack every time the complexion of government changes in

Canberra.

conciliation and arbitration through the Australian Industria

Commission have been removed. In that way both of th

mechanisms for redressing inequality - collective bargain

independent compulsory arbitration - have either be

diminished to such an extent that fair minded employers a

employees should and do regard the system as unbalanced

standards for Australia.

WHY A RIGHTS BASED APPROACH TO REFORM?

There can be no doubt that achieving reform will require

approach. A rights based foundation for reform ought not be s

for reform may instead promote particular institutions. The r

of the Australian Indu

has an appropriate role. Rights are the stuff of social change

sweep of history. They motivate and justify social action. T

of rights carries with it a moral imperative, it tends to ass

higher a

- 4 -

9. Institutions are often more open to attack. Unions are vilified as serving

Industrial

per

dustrial

work of

sted privileges.

pular

institutions they will set about to denude them of their powers, as we

n.

10. r set of laws

motion of a draft

y in the

to the

ssibility

and is more likely to gain public understanding and support. Once

established, rights are difficult to abolish or amend. Legislation is more

h underpin the

ment.

ears

f the system of conciliation and

arbitration now abolished. If those rights had been made explicit and

enjoyed popular acknowledgement, the system which they underpinned

WH

11. longer

s.

ed as

antages that

have spurned the recognition of employee rights. The recent federal

Independent Contractor Bill will remove those workers from rights and

protections accessible to employees. Should a Charter identify a set of

rights for workers as distinct from employees alone? If so, how are

the interests of union bosses not their members. The

Relations Commission is portrayed as a “third party” interlo

meddling in the affairs of others. It is said to be part of an “in

relations club”. Attempts to defend it are pilloried as being the

self interested individuals seeking to preserve self intere

Even when governments fear the backlash of abolishing po

have seen with the Australian Industrial Relations Commissio

The promotion of reform by advocating a particular model o

tends to introduce rigidities and complexities. The pro

set of industrial laws is unlikely to be well understood by man

wider community. The identification of rights, as opposed

formulation of a comprehensive system, allows for public acce

liable to amendment particularly where the rights whic

system have not enjoyed popular recognition or acknowledg

Many of the rights which Australian workers had for over 100 y

were implicit in the provisions o

may have been far more defensible.

OSE RIGHTS SHOULD A CHARTER DEAL WITH?

The world of work brings together a range of participants no

defined by common law notions of employers and employee

Dependant contractors are a category of workers not recognis

employees but often subject to the same economic disadv

- 5 -

dependent contractors to be identified and how is the broader concept

ent

may be more appropriate to speak in terms of

a Charter of Workplace Rights.

12. ustrial

ployers.

ghts appropriate to a fair and

13. m has

ts of employees

rlay to a

nd

mmon law

f good faith

and fidelity which are required of employees. Those obligations upon

employees provide employers with an enforceable capacity to ensure

its

14. ers the common

– is

he common

law but may see little interest in protecting an industrial relations

system primarily pitched at protecting employees. A statutory industrial

evel of bipartisan support if it

became the exclusive vehicle by which protections to both employers

. Employers are more likely to support a

provided due

HOW ARE RIGHTS TO BE IDENTIFIED?

15. There are a number of obvious starting points in the process of

identifying an appropriate set of workplace rights. A wide range of

of “worker” to be defined? In this respect the title of “employm

rights” is too confining. It

If a Charter of Rights is to be the basis for a reformed ind

relations system, it will also need to deal with rights of em

Employers are also entitled to have ri

balanced system recognised and protected.

Historically, the Australian statutory industrial relations syste

determined industrial disputes by awarding binding righ

and duties of employers. Those rights and duties were an ove

common law system framed predominantly to identify rights a

powers of employers relative to their employees. It is the co

that has accorded employers the benefit of the obligations o

that employees act in the best interests of their employer and

business.

The bifurcation in the source of protections – for employ

law and for employees the statutory industrial relations system

problematic. Employers may have an interest to protect t

relations system might find a greater l

and employees were provided

Charter of Rights if the Charter was even handed and

recognition to appropriate employer rights.

- 6 -

values and principles have already been identified and enshrined as

urce of

r, employee and

bor

i Declaration

es and

mmendations

of the ILO provide a rich source of universally accepted workplace

rights and standards. Australia’s long and proud history of involvement

tainly all of the

ch it can

ropriately

alian law. Other

rn found

International Covenant on Economic, Social and Cultural Rights. A

range of international instruments of the European Union enshrine

nclude the Council of Europe’s Social

Charter, the European Community Charter on the Fundamental Social

he

European Union.

16. ed a Charter

of Workers’ Rights (set out below) based on the contention that

international treaties ratified by the UK, should be complied with. Paul 1

we have been given advance

access. In it he has said of the IER’s approach, “taken together, those

been thought to be a firm foundation from

te

standards adopted across the civilised world”.2

rights by domestic and international law. The most obvious so

workplace rights is to be found in the tripartite (employe

government representation) processes of the International La

Organisation (“ILO”). The Const tution of the ILO, the ILO’s

of Philadelphia, the ILO’s Declaration of Fundamental Principl

Rights at Work and the numerous Conventions and Reco

with the ILO and the fact that it has ratified most and cer

core Conventions of the ILO provides a sound basis upon whi

be argued that rights identified by the ILO ought be app

enshrined in a Charter of Rights and observed by Austr

inte ational instruments where workplace rights are to be

include the United Nations Declaration of Human Rights and the

workplace rights. These i

Rights of Workers and the Charter of Fundamental Rights of t

The UK Institute of Employment Rights (“the IER”) formulat

Munro , a Vice President of the AIER, has a work in progress for the

online publication New Matilda to which

instruments might have

which to derive fundamental values or universal and absolu

1 Formerly a Senior Presidential member of the Australian Industrial Relations Commission and currently a Vice President of the AIER. 2 “Starting Draft Statement: Rights to Decent Work Within An Economically Efficient and Socially Fair Industrial Relations System”, Paul Munro, pending New Matilda publication, at [15].

- 7 -

instruments have traditionally enjoyed recognition in Austral

industrial relations system although in most cases their exist

been latent rather than patent. Some, like the obligation to e

collective bargaining are no longer acknowledged de

of the ILO

17. Many of the rights recognized by ILO and other international

ia’s

ence has

ncourage

spite the protests

that Australia is in breach of its international treaty

18. Yet there are other rights which have traditionally been enshrined in

ic status in

l level.

ique and

e of other

ion and

international instruments but is a right which endured over 100 years of

recognition in Australian law and practice. Despite the recent loss of

Other

ration as

for the identification of workplace rights. For

instance the right to a living wage, the right to limits to the working day

and week, the industrial principle of a “fair go” and the idiom “a fair days

19. Legal rights recognised and enforced by the common law must also be

nsidered and assessed. Some are clearly to be rejected as products

of a bygone era. Others may be regarded as the foundation for

appropriate protections for employers.

A START

20. The Institute of Employment Rights in the UK has made a useful start

although the approach it took was to focus only on workers rights. The

IER derived its charter of 10 workers' rights in the main from settled

international instruments. Elements of that charter might usefully be

obligations.

Australia’s industrial relations system and have had an icon

our system, whilst not being recognised at an internationa

Australia’s conciliation and arbitration system was largely un

(beyond New Zealand) was not reflected in the experienc

industrial relations systems. The right to compulsory conciliat

arbitration for the resolution of industrial disputes is not reflected in

that right, there are very strong arguments for its restoration.

iconic Australian based rights and standards deserve conside

appropriate sources

work for a fair days pay”.

co

- 8 -

transposed into a first working draft for a scheme of rights appropriate

for consideration in Australia.

21. ultation among

s in the UK and resulted in the

following set of rights being put forward:

Every worker has the right to dignity at work, to a fair wage and to just

ork.

2 health and safety

the right to a safe and healthy working environment.

Every worker has the right not to be discriminated against and to be

4 job security

has the right to security of employment (whether in

to

5 income security

Every worker has the right to fair income security in retirement,

s

6 union membership

Every worker has the right to form and join a trade union for the

s or her occupational, social and economic interests,

f p,

participating in union activities, or union representation.

7 union autonomy

Every trade union has the right to uphold its own rule-book, to spend its

funds and to conduct its activities including industrial action in

accordance with its rules, free from employer and state interference.

The UK Institute’s Charter was the subject of wide cons

unions and labour rights advocate

1 dignity and fair terms

conditions of w

Every worker has

3 non-discrimination

treated with equality in equivalent circumstances.

Every worker

relation closures, redundancies, transfers or otherwise).

sicknes and unemployment.

protection of hi

and not to be discriminated against on grounds o union membershi

- 9 -

8 industrial action

ndustr otection of

a ose of any

being in breach of contract, and without threat of

dismissal or discrimination.

e

representation by

a trade union, including the right to collective bargaining and to

isions at work.

m employment, to

effective remedies to enforce his or her rights, including adequate rights

for workers’ representatives to inspect and to obtain information.

22. Paul Munro in preparing his “Starting Draft” for New Matilda,3 asked for

comments from a number of experts including members of the AIER

rter might

of rights

ever, and

ed to be

decent work

aft include

each of those identified by the IER but with some modification and are

supplemented with other rights of employees that acknowledge the

reciprocal rights of their employer ( see 1 and 2 below). Paul drew

raft of

ocially fair

Every worker has the right to take i ial action for the pr

his or her occupation l, social and economic interests (or th

other worker) without

9 union r presentation

Every worker has the right of individual and collective

participate in dec

10 effective remedies

Every worker has the right, fro the outset of his or her

Executive. His draft accepts that elements of the IER’s Cha

usefully be transposed into a first working draft for a scheme

appropriate for consideration in Australia. He believes how

we agree, that Australian circumstances and priorities will ne

taken into account in developing a set of “rights to fair and

and related duties”. The rights Paul has identified in his dr

ideas from several sources to suggest the following starting d

“rights to decent work within an economically efficient and s

industrial relations system”4:

3 “Starting Draft: the Statement of Rights to Fair and Decent Work”, Paul Munro, [forthcoming New Matilda online publication]. 4 The Paul Munro/New Matilda starting draft is a work in progress taking into account preliminary comments supplied by a number of people and bodies including AIER and members of its advisory group and the New Matilda Policy Advisory Group. The starting draft is without prejudice to what may eventually be determined upon by any of those consulted as their preferred or eventual position.

- 10 -

1 Right to and duty to provide and perform work

l f-

a I h ibility of

the best of his or

work for periods desirable and

appropriate to particular circumstances.

2 Good faith performance in work relationship

Every worker has a right and obligation appropriate to a working

ailing

delivery of a "fair go all round" extending to reasonable use

without restraint in a subsequent work relationship of acquired human

capital.

3 D w

Every worker has a right to dignity at work:

• To be treated with respect;

• -related skills in the performance of

;

• - ted

s that affect the workplace;

• To aspire to available progression within the enterprise;

recognised

wo ions of work

ing regard to all relevant

considerations including publicly declared standards arrived at,

maintained and revised through dynamic participative processes that

engage actors at local and national levels and provide for continuous

evaluation.

5 Effective dispute resolution process and remedies

Work is natural and incidenta to human life, necessary to sel

ctualising individual consciousness. t is t e right and respons

every Australian to have, to provide, and to perform to

her ability, respectively, suitable

relationship governed by a principle of good faith performance ent

reciprocal

ignity at ork

To utilize and improve work

work and accumulate personal human capital

To have the opportunity to express views on work rela

matter

• To enjoy job satisfaction that comes from work being

and valued.

4 Fair terms

Every rker shall be accorded a fair wage and just condit

over reasonable and safe hours, hav

- 11 -

Every worker, from the outset of his or her working relationship, has the

c s tion

c j

r t includes

to obtain

iate reciprocal

resort to an independent, readily accessible and expert tribunal.

6 Health and safety

the right to a safe and healthy working environment.

e iscriminated against on prohibited

grounds and to be treated with equality in equivalent circumstances or

in the work value of equivalent human capital;

8 Job security

Subject to exceptions consistent with ILO standards, every worker has

h c y e d by

ction against unfair, capricious or arbitrary dismissal or detrimental

treatment without valid reason related to the worker’s performance or

conduct or the operational requirements of the enterprise affecting that

worker.

9 Income security and social wage

Every Australian has the right to fair income security in retirement,

mployment supported by a social wage related to the

h governmental

n e rs

the

protection of his or her occupational, social and economic interests.

The worker has the right to require the relevant union to uphold its

Constitution and Rules, to spend union funds and conduct activities,

including affiliations, participation in community wide engagement and

right and obligation to parti ipate in effective di pute resolu

processes and remedial a tion to interpret, ad ust and if necessary to

enforce respective rights and duties through a p ocess tha

adequate rights for the worker’s representative to inspect,

information, and to discuss issues; and where appropr

Every worker has

7 Non-discrimination

Every worker has the right not to b d

the rig t to se urity of employment so far as it ma b assure

prote

sickness and une

needs and circumstances of the case, provided throug

or pro-social activity by those who constitute our society.

10 U ion m mbe hip

Every worker has the right to form and join a trade union for

- 12 -

lawful industrial action in support of its interests, in accordance with the

union's rules free from employer and governmental interference.

v it of an

p and,

missal or

ational or

economic interests to secure agreement about matters that are or are

reasonably related to work relationship matters, being industrial action

in accordance with legislated procedures enabling exercise of the right

th ILO standards binding on Australia.

a trade union, and to be represented by it in the workplace at the

l of dispute resolution and consultative process.

WH

23. to involve

forming set

irst time this has

occurred since Federation. If we are to go forward we will need the

assistance of many hands and will require funding. We should ask

thers to

izens in a

nces,

seminars, community meetings and much public advocacy.

Additionally, a cogent, researched based justification for the rights

identified will need to be formulated. That research should look at both

social justice and economic considerations. If there is an economic

11 Collective bargaining and industrial action

Every worker has the right to bargain collecti ely in pursu

individual or collective agreement about the work relationshi

without being in breach of contract, and without threat of dis

discrimination, to take industrial action to protect their occup

in a manner consistent wi

12 Union representation

Every worker has the right of individual and collective representation by

appropriate leve

ERE TO FROM HERE?

We should recognise that we have an historic opportunity

wide sections of the community in the development of a re

of rights and standards for Australian workplaces: the f

workers, employers, universities, law firms, unions and o

become sponsors of the process. We need to enfranchise cit

widespread consultation process. This will involve confere

- 13 -

case for a Charter, as the IER identified, it needs to be convincingly

articulated and put in an Australian context.

24. teering

individuals

tify their

ER by

5

The Australian Institute of Employment Rights will form a s

committee to develop and guide the process. Interested

willing to contribute to the process are encouraged to iden

interest and participate by contacting Robert Durbridge at AI

email: robert.durbridge@buseco.monash.edu.au. Contributions to the

debate will be added to the resources available on the Institute’s

website at www.aierights.com.au

5 A Charter of Workers’ Rights: Institute of Employment Rights: KD Ewing and John Hendy QC (September 2002) ISBN 1 87371980 at Chapter 2.